Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 21: Devices to restrain competition and protect discoveries and enforcement: confidentiality in the courts and Europe
John Hull’s chapter in this volume ‘Devices to Restrain Competition and Protect Discoveries and Enforcement: Workplace Policies and Confidentiality Agreements’ (Chapter 20) discusses the problem of misappropriation of trade secrets by employees and the precautionary measures which may be taken before, during and after employment. However, policies and contractual provisions can never ensure that workplace secrets are fully secure and that departing employees (and new employers) are properly apprised as to what information can and cannot be used. Indeed, it may not be cost-effective to do so. There comes a point where litigation is necessary to resolve conflicting interests, although workplace policies continue to be important evidentially. This chapter firstly questions whether available court statistics from England and Wales are consistent with the suggestion that employee confidentiality cases are on the increase, then briefly examines the remedial landscape in the UK and Europe in the light of international obligations. The European Union (EU) as well as its Member States are WTO members and hence bound by the WTO agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). However, the extent to which the EU’s Directive on the enforcement of intellectual property applies to trade secrets is unclear. Arguably Europe should take its cue from Art 1(2) TRIPS, which characterizes the subject-matter of all sections of Part II as ‘intellectual property’, including Section 7 on undisclosed information, and from Art 41 which requires the enforcement procedures specified in Part III to be available for ‘any act of infringement of intellectual property rights covered by this Agreement’.
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